Can You Get A DUI On Delta-8 THC And Similar Products That Contain Below .3% THC In Tennessee?

Barnes & Fersten Law Firm

Barnes & Fersten Law Firm

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With the passage of the Agriculture Improvement Act of 2018, commonly referred to as the 2018 Farm Bill, hemp and its derivatives like delta-8 THC became federally legal. As the use of hemp-derived cannabinoids continues to increase, so does the need for information about how they pertain to existing laws. Here at Barnes and Fersten Law Firm, we are committed to providing our readers with up-to-date and accurate information about this rapidly changing area of law. In this blog post, we will discuss delta-8 THC, and similar products, and how they pertain to DUI laws in Tennessee.

What is Delta-8 THC?

Delta-8 THC is a psychoactive compound that is found in cannabis plants. It is similar to delta-9 THC, the active ingredient in marijuana, but it is not as potent. Concentrated amounts of delta-8 THC are produced from hemp-derived cannabidiol (CBD) and manufactured into products such as tinctures and edibles.

The effects of delta-8 THC vary depending on the individual and the amount consumed. Some people report feeling relaxed, while others may feel anxious or paranoid. At the time of this writing, delta-8 THC is legal federally, including in the state of Tennessee.

Legal THC Products With Below 0.3% THC

Delta-8 was the first of the delta-9 marijuana alternatives that became popular nationwide due to delta-8 causing similar psychoactive effects as delta-9 THC. Since delta-8’s success on the national market, the list of legal products that contain below .3% THC but have similar psychoactive effects on the body as marijuana have seemingly increased by the week. Each of the legal THC products listed below are legal federally under the Agriculture Improvement Act of 2018, commonly known as the 2018 Farm Bill:

  • CBD
  • Delta 8
  • Delta 10
  • THC-O
  • THC-P
  • HHC

Seemingly, every time a new product hits the market it is advertised as being more potent and having longer psychoactive effects on the body as its predecessor. CBD companies continue to develop products that mirror marijuana’s effects on the body and may impair your ability to operate a motor vehicle. Some of these products are advertised as having the same psychoactive effects on the body but without the paranoia and negative effects of marijuana. Regardless, as each of these products increase in popularity, it is important for individuals to understand that although the product is legal to smoke or consume, if it effects your ability to operate a motor vehicle you may be charged and potentially convicted of DUI.

Can I Use Delta-8 THC While Driving In Tennessee?

Although delta-8 THC is legal to consume in Tennessee, it is important to remember that it is an intoxicating substance and can impair your ability to drive. If you are caught driving while using or impaired by delta-8 THC, you could be facing the same penalties as if you were caught driving under the influence of alcohol or other drugs. Therefore, it is always best to err on the side of caution and avoid using delta-8 THC while driving.

How Do These Cannabinoids Impact DUI Laws In Tennessee?

In Tennessee, it is illegal to drive while under the influence of any intoxicant. Under the influence is defined as a person’s mental or physical condition being deprived by an intoxicant or drug which deprives one of that clearness of mind and control which one would otherwise possess. This includes any form of THC, including delta-8 and all the products listed above.

Under the state’s implied consent law, anyone who drives on a public road is deemed to have consented to a chemical test if they are suspected of driving under the influence. This means that if you are pulled over and suspected of DUI, you may be required to submit to a blood or urine test. Although delta-8 THC, and similar products, generally do not show up on a blood test, it may cause you to test positive for delta-9 marijuana due to the low level below .3% of THC being in the products. Similarly, those products have caused false positives for delta-9 as well. Regardless, the prosecutor must establish that you were impaired by whatever product you used at the time of driving.

DUI By Delta-8 And Delta-9 Impairment: Is There A “Legal” Limit To Marijuana In Your Blood?

For alcohol related DUI’s, it is common knowledge that the national standard of .08 is the legal limit. As it relates to marijuana DUI’s, the question becomes how the State establishes that an individual is too impaired to drive if the blood results come back with delta-9 in the blood. As explained above, legal products under the 2018 Farm Bill may cause your blood results to come back positive for delta-9 marijuana.

States where marijuana is legal, such as Colorado, Illinois and Montana, created a similar standard to the .08% alcohol level to establish impairment. In those three states, if your blood results come back as 5 nanograms per milliliter (ng/ml) or above, there is a rebuttable inference that the individual was too impaired to operate or be in physical control of a motor vehicle. Because marijuana is illegal in Tennessee, Tennessee does not have any presumptions or per se laws related to marijuana.

However, it is essential that your DUI representation understands how your blood results positive for marijuana may have impacted your ability to drive. For example, if your blood results come back below 5 ng/ml, your lawyer should discuss the presumption with the prosecutor to convince the prosecutor that they will have difficulty proving their case at trial because your blood level was below the presumption of impairment in the states where there is such a presumption.

On the other hand, if your blood results come back as above 5 ng/ml, it is essential that your lawyer argues that the level of THC in your blood cannot establish impairment. The National Highway Traffic Safety Administration (NHTSA), in a Report to Congress, even admitted that “[w]hile alcohol concentration (BAC or BrAC) is an accurate measurement of alcohol impairment of driving, the presence of THC in the driver’s body has not been shown to be a reliable measure of marijuana impairment of driving.” Similarly, the NHTSA admits that a toxicologist cannot provide expert testimony that a specific amount of THC in the blood definitively renders a driver to be unable to drive a vehicle safely. This is because every individual responds differently to THC products depending on numerous factors including how often they use THC products.

Inactive Marijuana In The Blood: What Does It Mean? How Does It Impact My Case?

If you provided a blood sample and it comes back positive for marijuana, your blood results will come back as positive for three separate substances: (1) delta9-THC; (2) THC-OH; (3) THC-COOH. THC-OH is an active metabolite while THC-COOH is inactive. Inactive means that the THC level was not having an impairing or any psychoactive effects on your body but that there was still THC in your body.

A high THC-COOH level is associated with individuals that use THC products regularly. A high THC-COOH level makes an impact on the active delta9 in your system because an individual who smokes or uses marijuana products more regularly will have a higher tolerance and thus, your lawyer should attempt to refute a prosecutor’s claim that you were impaired based on a high active delta9 level. The rationale is that the higher the inactive level, the more regularly an individual uses delta-9, which means the more it takes for that individual to feel the psychoactive effects and therefore have their driving be impacted by marijuana.

Alternatively, if you used delta-8 THC and it did not cause your blood sample to come back positive for delta-9, or you did not provide a blood sample, like an alcohol or illegal drug DUI case, any admissions to using delta-8 products to the police may be used to establish that you were impaired based on your interactions with the officer.

If you have been charged with DUI due to delta-8 THC, it is important to contact an experienced DUI attorney who can help you navigate the complex legal landscape. In short, regardless of whether you gave blood, your blood came back positive or negative for delta9 or you admitted to smoking delta-8, delta-9 or a similar product, your lawyer should argue that the blood results cannot establish that you were impaired. This is where the bodycam footage is especially important to demonstrate to the prosecutor, and potentially a jury one day, that you did not exhibit the signs of an individual that was impaired by marijuana.

If A Positive Delta-9 Blood Result Is Irrelevant To DUI, How Can A Lawyer Prove I Am Not Guilty?

Most people have seen someone that was high from marijuana, and how individuals are depicted in movies and on television who are high. Individuals under the influence of delta-8, delta-9 or similar products are depicted as acting goofy, giggly, easily distractible, moving slowly, sleepy and incapable of multitasking. Consequently, your lawyer should analyze every aspect of your arrest to demonstrate each task that you completed that demonstrate you were not deprived of the clearness of mind. From the onset of a traffic investigation there are divided attention tests designed to investigate whether the individual may be impaired, such as immediately responding in a safe manner to blue lights, an officer asking questions to the suspect while they are searching for their license and observing you getting out of the vehicle to see if you have difficulty with your balance or use the door for help. It is essential that your lawyer points out each of the signs of marijuana impairment to the prosecutor, and potentially a judge or jury, to establish that none of your actions were indicative of marijuana impairment.

Contact A Tennessee Marijuana DUI Lawyer

If you’ve been charged with a DUI in Tennessee due to delta-8, marijuana, or any other cannabis product, you should contact an experienced DUI attorney right away. The lawyers at Barnes and Fersten Law Firm have the experience and knowledge necessary to defend your case and help you avoid a DUI conviction. Call us today at 865-800-8276 to schedule a free consultation.

Attorney At Law, Managing Partner

Brandon D. Fersten is an esteemed Knoxville attorney practicing DUIcriminal defense, and juvenile law. Known for his empathetic approach and commitment to his clients, he brings a record of favorable case outcomes including dismissals and not guilty verdicts at jury trials resulting in Brandon being recognized as one of the “Top 40 Under 40” in Criminal Defense, U.S. News’ Best Lawyers: “Ones to Watch,” and Super Lawyers’ “Rising Stars”. Brandon’s professional accolades, combined with his passion for justice, position him as a reliable criminal defense advocate in the East Tennessee legal landscape.